Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

Mar 16, 1977

228 N.L.R.B. 750 (N.L.R.B. 1977)

750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montgomery Ward & Co., Incorporated and Ware-
house, Mail Order, Office, Technical and Profes-
sional Employees Union, Local No. 743, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Cases 13-CA-15118 and 13-RC-13757
March 16, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On November 17, 1976, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, Respondent Employer (here-
in called Respondent) and the Charging Party-
Petitioner (herein called the Union or Petitioner)
filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order, as modified below.
The Administrative Law Judge found that the
interrogation of employee Georgia Webb by outside
placement specialist Sally Gaver did not violate
Section 8(a)(1) of the Act because Gaver was not an
agent of Respondent. However, the Administrative
Law Judge, on the basis of "the relationship of Gaver
to Webb as regards Webb's employment, coupled
with the coercive remarks of Gaver," found that the
same interrogation constituted objectionable conduct
interfering with the results of the election held on
December 3, 1975. We conclude, for the reasons set
forth below, that Gaver was an agent of Respondent
in her conversations with employees and that
consequently her interrogation of Webb both violat-
ed Section 8(a)(1) of the Act and interfered with the
election.
Gaver was a placement specialist and consultant
for the Ray Graham Association for the Handi-
capped and was responsible for Respondent's hiring
i The Charging Party has excepted to certain credibility findings made
by the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (CA. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings
2 Sterling Faucet Company, Texas Division, a Subsidiary of Rockwell
228 NLRB No. 89
of a number of her former patients. After the
employees were placed in jobs, Gaver continued to
meet with them both at work and elsewhere in order
to counsel them with respect to employment-related
problems.
At Respondent's request Gaver was visiting the
warehouse on September 9, 1975, on a matter
relating to another employee and asked to see
Georgia Webb, whom Gaver had placed with
Respondent a year earlier. Webb interrupted her
work and spoke to Gaver in one of the management
offices. The Administrative Law Judge found that
during the discussion Gaver questioned Webb as to
her involvement in the union campaign and warned
her that if the Union's organizing efforts were
successful her job would be in jeopardy.
The record establishes that Gaver performed a
service for Respondent in counseling employees,
often on company time and premises. Employees
were aware of Gaver's role in placing employees in
jobs, and her appearances during working hours to
aid management in handling personnel problems put
her in a position to be identified with management in
the eyes of employees. Consequently, Gaver' s state-
ments could be interpreted by employees as those of
management. Accordingly, we find that Gaver was
an agent of Respondent 2 and that her interrogation
and threats3 to Webb violated Section 8(a)(1) of the
Act.
The Administrative Law Judge recommended that
the Union's Objection 7, alleging threats of reprisal
for union activity, be overruled. Inasmuch as we find
that Gaver's statement to Webb that the latter's job
might be jeopardized was a threat in violation of
Section 8(a)(1) of the Act, we find that such threat
also constituted interference with the election and we
shall, therefore, sustain the objection.
AMENDED CONCLUSIONS OF LAW
Substitute the following paragraphs for the Admin-
istrative Law Judge's Conclusions of Law 3, 10, and
11:
"3. By soliciting employee grievances and prom-
ising to act favorably thereon, and coercively
interrogating employees concerning their union
sympathies and activities and threatening them with
discharge Respondent has interfered with, restrained,
and coerced its employees in the exercise of their
rights guaranteed in Section 7 of the Act, thus
Manufacturing Company, 203 NLRB 1031, 1032 (1973); The Huntington
Hospital Inc., 227 NLRB No. 44 (1976).
3 Although the Administrative Law Judge found that Gaver told Webb
her job might be in jeopardy if the Union succeeded in organizing
Respondent's employees he failed to characterize this comment as a threat.
We find that Gaver s remark was a threat of reprisal for union activity and
that it consequently violated Sec . 8(a)(l) of the Act.
MONTGOMERY WARD & CO. 751
engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
"10. As alleged in Objection 7, during the critical
period (July 11, 1975, to December 3, 1975), the
Employer, by its officers, supervisors , and other
agents , threatened employees with reprisals if they
joined, supported, or assisted the Petitioner.
"11. The facts establish as set forth in Objections
1, 3, and 7 (referred to in Conclusions of Law 5, 7,
and 9) that the Employer engaged in conduct which
interfered with employees' exercising a free and
untrammelled choice in the representation election
held in Case 13-RC-13757 on December 3, 1975."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Montgomery Ward & Co., Incorporated,
Chicago , Illinois , its officers , agents , successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph 1(b):
"(b) Interrogating its employees with respect to
their union activities or sympathies."
2. Insert the following as paragraphs 1(c) and (d):
"(c) Threatening its employees with discharge or
other reprisal because of their union activities or
sympathies.
"(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act except
to the extent that such rights may be affected by
lawful agreements in accord with Section 8(a)(3) of
the Act."
3. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS HEREBY FURTHER ORDERED that the election
held on December 3, 1975, in Case 13-RC-13757 be,
and it hereby is, set aside , and that said case is
hereby remanded to the Regional Director for
Region 13 to conduct a new election at such time as
he deems that the circumstances will permit the free
choice of a bargaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT solicit employee grievances or
complaints and in connection therewith promise
employees to act favorably upon such grievances
or complaints if the employees refrain from
supporting or engaging in activities on behalf of
the Union.
WE WILL NOT threaten our employee with
discharge or other reprisal because of their union
activities or sympathies.
WE WILL NOT interrogate employees with
respect to their union activities or sympathies.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights guaranteed in Section 7 of
the Act except to the extent that such rights may
be affected by lawful agreements in accordance
with Section 8(a)(3) of the Act.
MONTGOMERY WARD &
CO., INCORPORATED
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This
consolidated proceeding, under Section 10(b) and Section 9
of the National Labor Relations Act, as amended, was
heard pursuant to due notice on July 6, 7, and 8 , 1976, at
Chicago , Illinois.
The charge in Case 13-CA-15118 was filed on February
9, 1976, and served on the Respondent on February 11,
1976 . The complaint in this matter was issued on March 11,
1976. The issues concern whether the Respondent has
engaged in conduct violative of Section 8(a)(1) of the Act
by interrogation of employees about union activities or
desires, and by soliciting grievances from employees and
promising affirmative action thereon if the employees
refrained from supporting the Union or engaging in union
activities.
The representation petition in Case 13-RC-13757 was
filed on July 11, 1975. Thereafter, on October 30, 1975, the
Acting Regional Director for Region 13 of the National
Labor Relations Board issued a Decision and Direction of
Election in Case 13-RC-13757. The election in Case 13-
RC-13757 was held on December 3, 1975, under the
direction and supervision of the Regional Director for
Region 13. Challenged ballots were sufficient to affect the
results of the election wherein 30 votes had been cast for
Petitioner and 39 votes against said Petitioner . Timely
objections to conduct affecting the results of the election
were filed by the Petitioner on December 10, 1975.
Thereafter, on January 30, 1976, the Regional Director
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issued a Supplemental Decision on Challenges and Objec-
tions in Case 13-RC-13757. In the said Supplemental
Decision the Regional Director resolved the question of the
10 challenged ballots by sustaining the challenge to one of
the ballots and fording that the remaining challenges were
not sufficient to affect the results of the election held on
December 3, 1975. The Regional Director set forth in his
Supplemental Decision that no evidence was presented in
support of Objections 5 and 6 and that such objections
were overruled . The Regional Director found that Objec-
tions 1 , 2, 3, 4, and 7 raised substantial and material issues
which could best be resolved on the basis of record
testimony and/or other evidence developed at a hearing.
The Regional Director further ordered a hearing on
Objections 1, 2, 3, 4, and 7. Thereafter the Petitioner
requested that the Board review such Supplemental
Decision . The Board on February 26, 1976, granted such
request for review and ordered that the scope of the
hearing on objections be enlarged to include Objection 5.
The issues in the objection case (Case 13-RC-13757)
concern whether the Employer made promises of benefits
and granted benefits to dissuade employee support of the
Union, whether the Employer interrogated employees as to
their union wishes and desires , whether the Employer
engaged in surveillance or created the impression of
surveillance of employee union activities , whether the
Employer designated a supervisor as an observer at the
election on December 3, 1975, and whether the Employer
threatened employees with reprisals if they joined, support-
ed, or assisted the Union.
On April 7, 1976, the Regional Director issued an order
consolidating Cases 13-CA-15118 and 13-RC-13757 for
hearing.
All parties were afforded full opportunity to participate
in the proceeding . Briefs have been filed by all parties and
have been considered.
Upon the entire record 1 in the case and from my
observation of witnesses , I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The facts herein are based upon the pleadings and
admissions therein.
Montgomery Ward & Co., Incorporated, the Respon-
dent , is, and has been at all times material herein, a
corporation . At all times material herein , Respondent
maintained its principal office and place of business at
Montgomery Ward Plaza, Chicago, Illinois, where it is
engaged in the retail sale of merchandise . It also maintains
a warehouse facility at 1010 Foster Avenue, Bensenville,
Illinois . In the course and conduct of its business
operations Respondent received an annual gross revenue in
excess of $500,000 during a representative 1-year period.
During the same period Respondent, in the course and
conduct of its business operations , purchased and received
goods and materials valued in excess of $50,000, which
were shipped directly from outside the State of Illinois.
As conceded by Respondent and based upon the
foregoing, it is concluded and found that the Respondent
is, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Warehouse, Mail Order, Office, Technical and Profes-
sional Employees Union, Local No. 743, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is and has been at
all times material herein a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE ISSUES ; OBJECTIONS
TO THE ELECTION ISSUES
A. Introduction; Ruling on Motion To Amend
Complaint
The unfair labor practice issues are limited and concern
(a) whether Respondent on or about November 19, 20, and
28 and December 1, 1975, conducted group employee
meetings and solicited employee grievances concerning
wages, hours, and working conditions; (b) whether, at such
meetings , Respondent promised to act affirmatively upon
said grievances if the employees refrained from supporting
or from engaging in other activities on behalf of the Union,
and (c) whether, on or about August 18, 1975, Respondent,
by Operating Manager Stocker, interrogated an employee
about his union activities, sympathies, and desires.
Since this proceeding was a consolidated proceeding
(objections and unfair labor practice issues), since the
General Counsel has discretion concerning the issuance of
complaint or issues therein , and since the General
Counsel's and the Charging Party's interests are similar in
part but not in total respects, to ensure an orderly hearing
with proper notice as to the issues, the parties were advised
at the hearing that the unfair labor practice issues litigated
would be those formally alleged and that the objection
issues would be those ordered set for hearing.
Although the General Counsel's complaint issues con-
cerning the group meetings in November and December
were limited to "solicitation of grievances" and "promises
of affirmative action upon grievances," the General
Counsel's opening statement alluded to proof of "granting
of benefits," a matter covered only in the objection issues.
The General Counsel was reminded that such issue was not
alleged as an unfair labor practice issue and that I would
only consider issues as litigated that were formally alleged.
Thereafter, consistent rulings relating to receipt of evidence
within the purview of the unfair labor practice issues for
consideration for unfair labor practice issues were made.
Similarly, consistent rulings relating to receipt of evidence
within the purview of the objections issues for consider-
ation of the objection issues were made.
Because the objections issues and unfair labor practice
issues were consolidated for hearing, the evidence for
consideration of the unfair labor practice issues is the
Errors in the transcript have been noted and corrected.
MONTGOMERY WARD & CO. 753
evidence that touches upon such unfair labor practice
issues formally alleged. Because of the consolidated aspects
and the similarity of specific objection issues, the evidence
relating to the unfair labor practice issues is also presented
for consideration with respect to the objection issues. The
evidence as to grant of benefits by the Respondent was
presented only with respect to the objection issues.
The General Counsel, on August 16, 1976, filed a brief
for consideration by the Administrative Law Judge. On
page 8 of 17 pages the General Counsel "moves to further
amend the complaint to allege" as is revealed by the
following excerpt from said brief:
(e) During the month of December, 1975, or January,
1976, Respondent granted benefits to employees to
dissuade them from further supporting or assisting the
Union in that Respondent, in response to employee
complaints, changed its overtime payment policy from
payment after 40 hours per week to payment after 8
hours per day.
In said brief the General Counsel set forth that "Counsel
for the General Counsel would agree that the better
practice would have been to move to amend the Complaint
when the testimony of Wayne Roth and Jack Broussard
had been completed. However, no prejudice can result to
Respondent by inclusion of this additional allegation since
the evidence was fully litigated. Granada Mills, Inc., 143
NLRB 957 (1963), and more especially, in view of the fact
that admission of the change in overtime payment policy
came from Respondent's witness, Mr. Broussard."
Despite the problem of "notice" involved in the usage of
a brief to set forth a motion, Respondent's counsel has
been attentive and ascertained the "motion" included in
the General Counsel's brief.2 Respondent's counsel points
out that the matter that the General Counsel moves to
amend has not been litigated as an unfair labor practice
issue, and that the matter in such respect has not been fully
litigated.
On August 20, 1976, the Charging Party filed a document
entitled "Union's Response to Post-Hearing Motion to
Amend the Complaint." The Charging Party sets forth its
position that the matter of "grant of benefits" has not been
fully litigated as an unfair labor practice issue, that,
however, the case should be reopened and the matter now
litigated.
I note that the issue of "grant of benefits" was included
in the objections filed by the Union on December 10, 1975,
and that on January 30, 1976, the Regional Director in his
Supplemental Report on Objections found that substantial
and material issues were raised with respect to such issue
and recommended hearing thereon. On February 9, 1976,
the Union filed the unfair labor practice charges in the
instant C case. In such charges the Union essentially
contended that the same type conduct contended to be
objectionable conduct to the election also constituted
unfair labor practices. The instant proceeding reveals that
witness Roth gave an affidavit to an investigator for the
Board's Regional Office on February 25, 1976, which set
forth in effect that changes as to overtime practice by the
Respondent occurred on or around January 25, 1976. I
note also that the General Counsel, in opening statement at
the hearing of this matter, stated that the General Counsel
would establish that Respondent had "granted benefits."
The General Counsel was reminded that the unfair labor
practice issues did not cover such issue and that the issues
would be limited to those formally alleged. Since the
objection issues had broader scope, evidence was admitted
on the grant of benefits issue but limited to the time period
between the petition and the election.
By virtue of the consolidated proceeding, evidence
relative to "grant of benefits" was received concerning the
referred-to time period. Thus, evidence of contended
changes concerning lockers, chairs, overtime, etc., was
received. Witness Roth, on direct examination, testified to
a change in method of overtime pay which occurred either
a week before or after the election. By virtue of the
consistent rulings, this evidence related only to the
"objection" issue. Involved in such an issue is whether such
change occurred before or after the election held on
December 3, 1976. The Respondent Employer cross-
examined Roth and established that such change occurred
around a month and a half after the election. Respondent
witness Broussard was cross-examined in detail as to what
transpired at the meetings he held with employees, as to
what communications he held with local supervisors, and
as to recommendations he made. In view of the proper
latitude to be allowed on cross-examination, such examina-
tion was proper and in line with the issues formally alleged.
In answer to questions on cross-examination, Broussard
admitted that he recommended to the Respondent's local
officials that they should have an overtime policy different
from the existing one because of the type of organizational
structure at the warehouse.
The General Counsel sets forth in effect a realization that
it would have been better practice for the General Counsel
to have made the motion to amend at the hearing, appears
to suggest that Broussard's testimony was the missing link
needed as a matter of proof upon the point involved, and
argues that the matter has been fully litigated.
I reject such contentions. It is clear that the matter has
not been fully litigated for the purposes of an unfair labor
practice allegation of conduct violative of the Act after the
election held on December 3, 1976. All that the Respon-
dent Employer had to do to successfully meet the issue of
"grant of benefits" as to the objection issues was to show
that such conduct did not occur on or prior to December 3,
1976. The General Counsel indicated clear awareness of
this at the hearing but expressed a desire to "reserve at this
time." The General Counsel was reminded that the issues
considered and to be litigated were those formally alleged
in the unfair labor practice complaint. No amendment
alleging "grant of benefits" was made at that point or
thereafter. As the hearing proceeded, rulings were con-
stantly made relating to the evidence and whether it related
to the unfair labor practice issues or objection issues.
Considering the timing of the filing of objections, the
wording of the objections, the Regional Director's Supple-
2 The practice of setting forth "motions" in briefs should be discouraged
and eliminated.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mental Decision on Objections , the timing of the filing of
the underlying charge, the investigative affidavit of Roth,
the allegations in the complaint , and General Counsel's
statement of what would be proved initially, it is clear that
the issue set forth in the proposed amendment is one that
the General Counsel was aware of, that amendment could
have been made at the hearing, and that the issue could have
then been litigated at that time. Accordingly, I deny the
motion of the General Counsel to amend the complaint to
now allege violative conduct concerning changes in
January 1976, as to method of overtime payment .3
B. Supervisory and Agency Status 4
At all times material herein, the following persons
occupied the positions set opposite their names and have
been , and are now , agents and/or supervisors of Respon-
dent , acting on its behalf, within the respective meanings of
Section 2(13) and (11) of the Act: Fred Spear - warehouse
manager; Earl Stocker - operating manager; Jack
Broussard - assistant labor relations director.
C. Interrogation (ULP and Objection Issues)
1. The General Counsel alleged in his complaint and
the Respondent denied that "On or about August 18, 1975,
at the Respondent's warehouse facility, Respondent, by its
agent and/or Supervisor, Earl Stocker , interrogated an
employee about his union activities, sympathies and
desires."
The witnesses to this issue were Wilmon Collins and
Stocker. Collins' testimony, viewed in the light most
favorable to the General Counsel's case, would be to the
effect that he had been to a union meeting and that later
Stocker asked him if he had been to a meeting and
questioned him as to how many people were at the
meeting . The initial questioning of Collins was by leading
questions . Later Collins was asked to relate what was said
by him and Stocker. Collins was also questioned as to
statements in his prehearing affidavit which were to the
effect of some specific unlawful type of interrogation
during the alleged incident . Stocker denied that he
interrogated Collins about his or others ' union activities or
about union meetings . Considering the two witnesses and
their testimony as a whole , I found Stocker to appear the
more truthful and objective witness . I credit Stocker's
testimonial denial that he engaged in unlawful interroga-
tion of Collins. Accordingly, it will be recommended that
the complaint allegation as to unlawful interrogation of
employees about their union activities , sympathies, and
desires be dismissed.
2. The General Counsel alleged in the complaint and
the Respondent denied that, "On or about September 9,
1975, Respondent through its agent,, Sally Gayer, at
Respondent's Bensenville premises interrogated an em-
ployee about her union activity and desires."
3 Great Scott Supermarkets, Inc., 206 NLRB 447 (1973).
* The facts are not disputed and are based upon a composite of the
pleadings and admissions therein and evidence relating to Broussard's
status
5 Webb appeared to be a truthful and objective witness . Gaver's
testimony bordered upon conclusion and interpretation as to detail . I credit
Webb's testimony over Gaver's where in conflict.
The evidence is clear and I credit Georgia Webb's
testimony to the effect that on or about September 9, 1975,
Gayer questioned her as to whether she was getting
involved in the Union and as to who was organizing for the
Union and told her not to get involved with the Union
because, if the Union was successful in organizing , her job
could be in jeopardy.5
The critical issue as regards the complaint issue is
whether Gayer was an agent of the Respondent when
talking with Webb on September 9, 1975. In my opinion,
the evidence does not establish that Gayer was an agent for
the Respondent in such interrogation as occurred . Gayer is
a placement specialist and consultant for Ray Graham
Association for the Handicapped. Such association had
placed a number of patients with the Respondent as
employees. Among those placed were Georgia Webb and
Gene Fairhurst. At various times Gayer or other consul-
tants are requested by the Employer to visit such employ-
ees concerning emotional and related type problems.6 On
or about September 9, 1975, Respondent's manager of
distribution, Fred Spear, requested Gayer to see employee
Fairhurst. Gayer made a visit to Respondent 's premises
and saw Fairhurst and Webb. There is no evidence that the
Respondent requested or authorized Gayer to speak on its
behalf as to its policy concerning the Union. Nor do I find
the evidence convincing that the Respondent would
reasonably foresee that Gayer would engage in interroga-
tion or talk concerning the Union. Under such circum-
stances, I am persuaded that the evidence is insufficient to
reveal that the Respondent had constituted Gayer to be an
agent for the purpose of talking to Webb about the Union
or interrogating Webb concerning the Union. Accordingly,
the allegation of unlawful interrogation, violative of
Section 8(a)(1) of the Act, will be recommended to be
dismissed.?
Objection Issue
3. The Petitioner's Objection 3 alleged that "During the
critical period, the employer, by its officers, supervisors,
and agents coercively interrogated employees concerning
their union wishes and desires." The critical period
involved the time between July 11, 1975, and December 3,
1975.
The evidence presented concerning this issue consisted of
the evidence relating to the alleged interrogation by
Stocker, the interrogation by Gayer, interrogation by
Devila, and interrogation of Connelly by Stocker.
I have previously found the evidence insufficient to
establish violative interrogation of Collins by Stocker.
Although I have found that the Respondent was not liable,
within the purview of the unfair labor practice allegations,
for the interrogation of Webb by Gayer on September 9,
1975, I am persuaded that such interrogation of Webb as to
employee union activities constitutes objectionable con-
duct affecting the results of the election held on December
8 There is no financial or other relationship between Respondent and the
Ray Graham Association.
7 As indicated later herein , I find such "interrogation" to constitute
objectionable conduct affecting the election results of the election held on
December 3, 1975.
MONTGOMERY WARD & CO.
3, 1975. Such interrogation, reasonably construed, would
have an effect on and would interfere with Webb's desires
as to voting in said election.
Witnesses Connelly and Devila testified with respect to
an issue of alleged interrogation occurring in August 1975.
Connelly's testimony as to what occurred was very
confused. The following excerpts reveal Connelly's initial
testimony as to what occurred.
A. Then he said a union is trying to get in, and
there will be people coming up to you and asking you
about the union. If you would like to join or if you ever
belonged to one.
Q. He said other people would?
A. Yes, but he didn't say who they would be. He
said that there would be people coming up to you
probably from the union. Then I told him I did belong
to a union where I used to work, but the company I
used to work for changed hands a couple of times, so I
don't know.
Q. Did Mr. DeVila say anything else about the
union coming in or something?
A. No, he didn't.
Q. Did Mr. DeVila ask you any questions about
the union?
A. He asked me if I would help in there. I really
didn't know at that time.
Q. If you would help a union get in?
A. If a union would come in here, would you like
to vote for it or, you know.
Q. He asked you if you would vote for it?
A. Try and help a union to get in. I told him I
didn't really know.
Q. You didn't know?
A. Right.
Q. You do recall if Mr. DeVila asked you if you
would help a union, is that right?
A. Or try to help get the union or something like
that.
Further examination of Connelly revealed continued
confusion. Devila denied interrogating Connelly about his
union desires. While Devila was not a thoroughly forth-
right appearing witness, the confused testimony of Connel-
ly has little probative value.
Considering Connelly's confused testimony, I am per-
suaded that the facts are insufficient to reveal that Devila,
in August 1975, engaged in "interrogation" which consti-
tuted objectionable conduct affecting the results of the
election held on December 3, 1975.8
Witness Roth credibly testified to the effect that, on the
day of the election, December 3, 1975, Operating Manager
Stocker spoke to him around 8:30 and asked him if he had
voted or not. Roth credibly testified to the effect that he
told Stocker that he had just left. Considering the
foregoing, it appears that around 8:30 a.m. on the date of
the election, during the time the election was being held,
8 The General Counsel's bnef appears to argue that Devila's alleged
interrogation of Connelly was encompassed in the complaint allegations. It
is not and was not so litigated.
9 The facts are based upon a composite of the credited aspects of the
testimony of all witnesses who testified as to meetings held by Broussard
755
Stocker asked Roth whether he had voted or not. It
appears that Roth had already voted at such time. There is
no evidence that such interrogation was heard by other
employees or was reported to others by Roth. Considering
this, it is clear that the evidence does not reveal that
Stocker's conduct interfered with Roth's voting desires or
the voting desires of others. Accordingly, such conduct
does not reveal objectionable conduct affecting the results
of the election held on December 3,. 1976.
Conclusion
In sum, I conclude and find that the interrogation of
employee Webb about employee union activity by Gaver,
on or about September 9, 1975, constituted conduct which
interfered with the results of the election held on December
3, 1975. Although I have found that Gaver was not an
agent for the Respondent and that the Respondent was not
liable for such conduct within the meaning of Section
8(a)(1) of the Act, the facts concerning the relationship of
Gaver to Webb as regards Webb's employment, coupled
with the coercive remarks of Gaver, persuade that Webb's
right to exercise a free voting choice in the election was
interfered with and that therefore such interrogation by
Gaver constituted objectionable conduct interfering with
the results of the election held on December 3, 1975.
D. Solicitation of Grievances; Promises of Benefits
(ULP and Objections Issues)
A. The General Counsel's complaint alleges and the
Respondent denies that (1) "On or about November 19, 20,
28, and December 1, 1975, Respondent conducted group
employee meetings and solicited employee grievances
concerning wages, hours and working conditions," and
that "On or about November 19, 20, 28, and December 1,
1975, at employee group meetings, Respondent promised
to act affirmatively upon said grievances if the employees
refrained from supporting or from engaging in other
activity on behalf of the Union."
B. The Petitioner's objections, Objection 1, alleged that
"During the critical period the employer, by its officers,
supervisors and other agents made promises of benefit to
employees to dissuade them from supporting or assisting
the petitioner."
The Facts 9
Apparently on November 18 and at least prior to
November 19, 1975, at 8:30 a.m., the Respondent posted a
notice to employees as follows:
Bensenville, Il. November 10, 1975
TO: ALL STAFF EMPLOYEES
and Spear on November 19, 20, at some date between November 20 and 28,
and on November 28, and December 1, 1975, and upon exhibits in the
record. The facts are not in real dispute except as to whether or not
Broussard specifically alluded to doing something about solving gnevances.
I credit Broussard's denial that he specifically alluded to solving gnevances.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Personnel as indicated on the attached lists will attend
meetings to be held in the Second Floor Conference
Room.
A member of Corporate Labor Relations staff will be
here for the purpose of answering any questions you
may have regarding the election on December 3, 1975,
under the auspices of the National Labor Relations
Board.
P.F. Spear
Manager
Small Ticket Retail Pool
Posted alongside such notice was a sheet of paper
relating to "meeting(s)" for Wednesday, November 19,
1975, and upon which were various time period listings
(e.g., 8:30-9:45 a.m.), and under such time period headings
were names of employees in groups ranging from 8 to 11
employees in number. Such listings indicated scheduled
meetings ranging from an hour and 15 minutes to an hour
and a half in length for the named employees. Such listings
indicated scheduled meetings at different times for five
groups of employees. There was also posted a similar
notice for employees scheduled to meet on November 20,
1975.
The facts reveal that in substantial effect the meetings as
scheduled were held. The General Counsel's witnesses
testified in effect with regard to six of the nine meetings
that were held. As to all but one of the meetings the
General Counsel's witnesses thereto were limited to one in
number. Such witnesses testified in effect to separate
meetings attended by from six to nine employees. It is clear
that at each meeting Spear, manager of distribution,
introduced Assistant Labor Relations Director Broussard,
and Broussard handled the rest of the meeting. Spear, for
the Respondent, testified with respect to his general
introduction of Broussard at all of the meetings. Broussard,
for the Respondent, testified generally as to Spear's
introduction and as to the general nature, and as to some
details of the meetings.
The general substance of the meetings is not in real
dispute. On cross-examination, the General Counsel's
witnesses agreed to much of what Broussard in effect later
testified to. Broussard, in his testimony, stated that he had
heard the General Counsel's witnesses testify and that their
testimony comported with his recollection of what had
occurred.
The parties dispute whether the Respondent, by Brous-
sard, at these meetings and at other meetings on November
28 and December 1, 1975, solicited grievances from
employees. Despite such dispute in contentions, the facts
overwhelmingly reveal that Broussard did in fact at the
meetings on November 19 and 20, 1975, solicit grievances
from employees. The posted notice scheduling the meetings
(the notice dated November 18 and set forth before herein)
referred to the meetings for the "purpose of answering any
questions you may have regarding the election...."
Spear testified to the effect that he introduced Broussard as
assistant labor relations director for the Respondent. The
overall testimony of all witnesses support this as having
been done, and it is so found. Spear testified to the effect
that he read partly from a prepared text and spoke
extemporaneously also. Spear's testimony as to his intro-
duction of Broussard was so general in nature that it
cannot be said to be reliable to persuade that he read the
text of his prepared introduction. This point is not,
however, of great importance. The essential dispute is
whether Spear suggested that employees ask any type of
questions that they desired. The testimony of General
Counsel's witnesses was to the effect that Spear told them
that they should ask any questions or bring up any
problem . Spear's prepared text contained statements to the
effect that Broussard was there to discuss the complete area
and to provide answers to any question, that Spear was to
encourage the employees to ask questions, and that
employees should freely discuss and ask questions of
Broussard regarding the election. Spear told the employees
to ask questions that they had raised to him and to ask any
other questions that the people had in this whole area.
Broussard also credibly testified that at these meetings he
told the employees that the meetings were open meetings,
that he was there to also learn what was on their minds,
that they should feel free to talk and to raise questions and
communicate. Broussard also credibly testified that he did
not exclude anything as to the questions asked.
The facts are clear that the employees voiced complaints
and grievances on a broad spectrum. Such complaints and
grievances touched upon the question of the number of
tables, chairs, purse lockers, overtime, vending machines,
uniforms , telephones, microwave ovens and other matter.
It is clear that some of the items discussed touched matters
that Broussard knew went beyond existing terms and
conditions of employment. Thus, Broussard would reason-
ably know that a requested microware oven touched a
desired new benefit. Broussard would also reasonably have
known that a requested additional pay telephone would
have constituted a desired new benefit. The facts are clear
that Broussard discussed many of the complaints and
grievances , took notes as to complaints and grievances,
told employees that he would check with Spear on
complaints and benefits, and at no point told employees
that certain aspects of complaints or grievances were not to
be discussed.
Solicitation of Grievances; Conclusion
Considering all of the foregoing, it is clear and I conclude
and fmd that the Respondent, by Broussard, in the
meetings of November 19 and 20, 1975, solicited employee
grievances and complaints. The solicitation of grievances
or complaints, in and of itself, is not a violation of the Act
excepting to the extent that such solicitation might imply a
promise of benefit(s) in solution of such grievances.
Promises of Benefit
There is a factual dispute between the testimony of some
of General Counsel's witnesses and Broussard as to
whether Broussard specifically told employees in effect that
he would find or get solutions to their complaints and
grievances . I am persuaded that Broussard testified
truthfully when he testified to the effect that he made no
specific promises of benefits. This, however, does not
MONTGOMERY WARD & CO.
answer the question as to whether his conduct constituted a
promise of benefits.
As the Board has held in Uarco Incorporated, 216 NLRB
I at 1 and 2 (1974),
As noted by the Administrative Law Judge and by our
dissenting colleague, the solicitation of grievances at
preelection meetings carries with it an inference that an
employer is implicitly promising to correct those
inequities it discovers as a result of its inquiries. Thus,
the Board has found unlawful interference with
employee rights by an employer's solicitation of
grievances during an organizational campaign although
the employer merely stated it would look into or review
the problem but did not commit itself to specific
corrective action; the Board reasoned that employees
would tend to anticipate improved conditions of
employment which might make union representation
unnecessary. However, it is not the solicitation of
grievances itself that is coercive and violative of Section
8(a)(1), but the promise to correct grievances or a
concurrent interrogation or polling about union sympa-
thies that is unlawful; the solicitation of grievances
merely raises an inference that the employer is making
such a promise, which inference is rebuttable by the
employer.
Thus, the General Counsel in this case, by the proof
establishing that Broussard engaged in the solicitation of
employee grievances and complaints on November 19 and
20, 1975, has established a prima facie showing that the
Respondent has impliedly promised to correct such
grievances or complaints to dissuade their support of the
union. Such prima facie case, however, can be rebutted.
The issue narrows to whether the Respondent has
rebutted the above-referred-to prima facie case. The
Respondent contends in effect that Broussard told the
employees that he was not making any promises.
The facts are clear that Broussard did tell employees in
the meetings that because of the pending election it was
unlawful for him to make promises of benefits and that he
was not making any promises. This, however, must be
considered in context with all of the facts.
Considering the evidence as a whole, I am not persuaded
that the evidence as to Broussard's remarks about not
making promises overcomes the establishment of a prima
facie case of implied promises. Rather, I am persuaded that
employees would construe such remarks as double talk,
similar to a nod and wink, and construe that Broussard was
saying that " I can 't specifically tell you of promises of
benefits, but you understand that my meaning is that there
will be new or changed benefits." Accordingly, I conclude
and find that the evidence establishes that the Respondent,
by Broussard, on November 19 and 20, 1975, in small
group meetings, made promises of benefit to employees to
dissuade their support of the Union. Such conduct, as
alleged in the General Counsel's complaint, is violative of
Section 8(a) (1) of the Act. Such conduct, as averred in the
objections, Objection 1, constitutes conduct which inter-
fered with the results of the election held on December 3,
1975. Accordingly, Objection 1 will be sustained.
757
Spear's Conduct
At some point of time between November 20 and 28,
1975, Spear, manager of distribution, spoke to the Employ-
er's assembled employees with respect to some of the
matters the employees had complained of to Broussard on
November 19 and 20, 1975.
As has been indicated, the parties were advised that the
issues litigated would be those formally alleged. The
evidence concerning Spear's conduct at such meeting was
admissible only as having bearing on the objection issues.
Essentially, the evidence relating to Spear's conduct
appeared to have value only with respect to whether there
had been grant of benefits as regards tables and chairs in
the lunchroom and the receipt of new purse lockers. The
evidence reveals in effect that there was no grant of new
benefits in such regards and that Spear's remarks were to
reveal that such items had been on order.
Some of the evidence relating to Spear's remarks relates
to "promises of benefit," not alleged in the complaint, but
averred in Objection 1. It is sufficient to say that Spear's
own testimony relating to "vending machines" and
implying that employees later might be allowed a choice,
constituted a "promise of benefit." Such conduct, as
alleged in Objection 1, is objectionable conduct and,
accordingly, I would sustain Objection 1 on this basis also.
I have considered the other testimony relating to Spear's
meeting with employees between November 20 and 28,
1975, and do not find that it relates to the issues alleged in
the complaint or in the objections. The closest that the
evidence approaches touching an issue is the testimony of
Shirley Collins. Collins testified to the effect that Spear
stated that, if they voted for the Union, they would be on
their own, and if they voted no, they would have Fred
Spear in their corner. Collins' testimony on direct and
cross-examination, however, revealed an unreliability to
such testimony. Accordingly, I do not credit such testimo-
ny.
In sum, except as indicated above, the evidence relating
to Spear's conduct in a speech occurring between Novem-
ber 20 and 28, 1975, does not have a bearing on the issues
as litigated.
The November 28 and December 1, 1975,
Meetings
Employee meetings similar to the ones held on Novem-
ber 19 and 20, 1975, were scheduled and held on
November 28 and December 1, 1975. At such meetings
Assistant Labor Relations Director Broussard discussed
the mechanics of the election to be held on December 3,
1975, did some general campaigning at such time, and
discussed the fact that he had not secured answers to some
complaints and grievances. Again, there was some airing of
complaints and grievances. For the reasons previously
given, it is sufficient to say that the facts reveal a
continuation of implied promises of benefit violative of
Section 8(a)(1) of the Act and constituting objectionable
conduct as averred in Objection 1 as regards the election
held on December 3, 1975. Accordingly, I conclude and
find that Broussard, by such conduct, engaged in conduct
violative of Section 8(a)(1) of the Act. I also find such
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct to be objectionable conduct , as averred in
Objection I and recommend that Objection 1 be sustained.
E. Alleged Grant of Benefits (Objection Issue Only)
The Petitioner 's Objection 2 alleged that "During the
critical period , the employer, by its officers , supervisors
and other agents, granted benefits to employees in order to
dissuade them from supporting or assisting the petitioner."
The critical time period involved is the time period from
July 11, 1975, until the election held on December 3, 1975.
The evidence and contentions concerning this objection
issue relate to whether Respondent (1) granted employees
the right to choose the method of delivery of food in the
lunchroom, (2) granted employees benefits by providing
tables and chairs for the lunchroom , (3) granted employees
benefits by providing new purse lockers for employees, (4)
granted employees benefits by promising to facilitate the
finding of a job for employee Jay Palermo , (5) granted
employees benefits by changing the method of overtime
compensation , and (6) granted employees benefits by
changing the method of work of certain "pickers" and
"packers."
The evidence does not establish that the Employer,
during the critical time period preceding the December 3,
1975, election , granted benefits to employees in order to
dissuade them from supporting or assisting the Union. The
facts concerning the contended grant of benefits may be
summarized as follows:
1. As to the contended grant of benefits to employees
to have the right to choose the method of delivery of food
in the lunchroom , the evidence does not establish a grant of
benefits but reveals an implied promise of a right to choose
such method . Thus, Manager Spear, during the critical
period, discussed with employees the complaints concern-
ing food service, the problems relating to food services
from vending machines and vending trucks, and indicated
that the Employer would pursue and negotiate vending
services and "might eventually" give the employees an
opportunity to decide between themselves which service
they wanted.
2. As to the contended grant of benefits by providing
new and additional tables and chairs , the evidence reveals
that the Employer has had tables and chairs for the
lunchroom . Prior to the event of union activities, the
Employer had ordered additional chairs and tables for the
lunchroom because of the expansion of the work force.
Such additional chairs and tables had not been received or
placed in the lunchroom as of around November 1975.
During the representation election campaign, complaints
concerning the need for the chairs and tables were
discussed . Following this , the Employer received the tables
and chairs and they were placed in the lunchroom. The
Employer explained to the employees that the tables and
chairs had been ordered in the past and had only been
received just prior to their being placed in the lunchroom.
Thus, the evidence does not establish that the installation
of new tables and chairs in the lunchroom constituted a
grant of benefits to dissuade employee support of the
union.
3. As to the contended grant of benefits by providing
new purse lockers for employees , the evidence reveals that
the Employer has had purse lockers for its female
employees . With an expanded work force , a need arose for
additional purse lockers for employees . The evidence
reveals that after union activity had commenced, after the
filing of the representation petitions on July 11, 1975, and
on October 20, 1975, the Employer ordered additional
purse lockers for employees. In November 1975, the
Employer held numerous small group meetings wherein
employees voiced complaints, including complaints as to
the number of available purse lockers. Later the previously
ordered purse lockers were installed , and employees were
told that they had been on order but stored in the
warehouse awaiting installation.
The general thesis of argument seems to suggest that the
Petitioner contends that purse lockers were installed as a
grant of benefits in answer to employee complaints at the
employer-employee "grievance-complaint" meetings in
November 1975. The evidence clearly reveals that the purse
lockers were ordered prior to the events of November 1975.
Thus, it is clear that the evidence is insufficient to reveal
that the purse lockers were installed as a "grant of benefits"
to dissuade union support on such theory.
Nor do the facts reveal that the ordering of such purse
lockers in October 1975, after the filing of the representa-
tion petition on July 11, 1975, nor that the installation of
the purse lockers prior to the election on December 3, 1975,
constituted a grant of benefits to dissuade employee
support of the union. The facts relating to the chairs and
tables for the lunchroom reveal that the Employer was
desirous of having adequate facilities available for an
expanded work force. Considering this and the Employer's
explanation to employees when the chairs, tables, and
lockers were installed, it is clear that the evidence is
insufficient to establish that the installation of "purse
lockers" constituted a grant of benefits to dissuade
employee support of the Union.
4. As to the contended grant of benefits by promising
to facilitate the fording of a job for employee Jay Palermo,
I am persuaded that the evidence is insufficient to establish
that promise of or grant of benefits to dissuade employee
support of the Union was made.
The witnesses to this issue were Wilmon Collins and
Broussard. The facts are based upon a composite of the
credited aspects of their testimony.
At one of the meetings in November 1975, conducted by
Broussard for the Employer and relating to complaints and
grievances and discussions thereto, employee Jay Palermo
made a statement that he was moving to the university in
Tucson, Arizona . Broussard told Palermo that he (Brous-
sard) had just returned from Tucson. Palermo then asked if
the Employer had a store in Tucson. Broussard said it did.
Palermo then asked in effect if he could be transferred or
get a job with the Employer in Tucson. Broussard told
Palermo that he would talk to the manager there. After the
group meeting , Palermo spoke to Broussard outside the
meeting room. Palermo told Broussard that he wouldn't be
voting in the upcoming election , that he was leaving for
Tucson before the representation election to be held on
December 3, 1975. Palermo asked Broussard if he thought
he could really help him get a job at the Employer's store
there . Broussard replied that he would give Palermo the
MONTGOMERY WARD & CO.
telephone number for personnel management in Tucson,
that Palermo could call the manager when he got there.
The facts clearly reveal an implied promise by Broussard
to help Palermo secure employment at the Tucson store.
The question is whether the "implied promise" was for the
purpose of dissuading Palermo's support for the Union. In
my opinion, the evidence is insufficient to reveal that the
"implied promise" was for the purpose of dissuading
Palermo's support for the Union. There is no direct
evidence to reveal that the "implied promise" was unlaw-
fully motivated. Nor do I find the evidence sufficient to
infer such unlawful motive. There is nothing in the
evidence to reveal that under ordinary circumstances
Broussard would not have offered similar help to any
employee leaving one store and moving to the vicinity of
another store. In sum, the evidence is insufficient to reveal
that Broussard's offer to help Palermo secure employment
constituted a grant of benefits to an employee to dissuade
employee support for the Union.
5. As to the contended grant of employee benefits by
changing the method of overtime compensation, there is
absolutely no evidence to reveal that the Employer
changed its method of overtime compensation during the
critical time period preceding the representation election
held on December 3, 1975.
6. As to the contended grant of employee benefits by
changing the method of work of certain "pickers" and
"packers" there is absolutely no evidence to reveal that the
Employer changed its method of work of the "pickers" and
"packers" during the critical time period preceding the
representation election held on December 3, 1975.
In sum, the evidence does not support that the Employer
engaged in objectionable conduct as alleged in Objection 2.
Accordingly, it will be recommended that such Objection 2
be overruled.to
F. Alleged Surveillance and/or Alleged Creation of
Impression of Surveillance (Objection Issue Only)
The Petitioner's Objection 4 alleged that "During the
critical period, the employer, by its officers, supervisors
and agents, engaged in surveillance of union activities
and/or created the impression that union activities were
being kept under surveillance by the employer."
The witnesses to this issue were Wilmon Collins, Hansen,
and Stocker. The issue is whether Stocker engaged in
surveillance and/or created the impression of surveillance
of the distribution of union literature to employees on a
sidewalk.
The facts are clear that the Union engaged in handbilling
and distribution of union literature to employees on a
sidewalk approximately 20 feet from an office near the
entrance to the warehouse, that employees coming to work
and receiving handbills or union literature could see
through the windows of the office near the entrance door,
10 The Union (Petitioner and Charging Party) argues in effect that "grant
of benefits" for an unlawful purpose occurred after the election held on
December 3, 1975. Such "grant of benefits," however, was clearly not
litigated as an unfair labor practice issue in this case. The cases cited by the
Union as regards the question of interference with a future fair election are
not pertinent since they pertain to issues litigated as unfair labor practice
issues. The Union's contention that such motion of the General Counsel to
759
that such employees could see persons working, sitting, or
standing in such office, that persons in such office could
see the "handbilling" or "distribution" of union literature
either while sitting or standing, and that the windows in
said office are large windows.
The facts are also clear that the office near the front of
the warehouse is not Stocker's office, that Stocker,
however, is normally in such office between 7 and 8 a.m.,
that he is working in such office at that time, that one of
the reasons is that the front door is unlocked and that in a
security sense he is there because he has two female
employees working there. Further, the facts reveal that, on
occasions other than the ones involved in the issues,
Stocker from time to time observes employees coming to
work.
It is undisputed that, during the critical time period
before the December 3, 1975, election, Operating Manager
Stocker stood and observed the Union's handbilling and
distribution of literature to employees.
Hansen testified to the effect that she observed Stocker
standing in the office and observing the handbilling and
distribution of literature every day, that he normally did
not do this otherwise. Collins, however, credibly testified to
the effect that at times, when handbilling, etc., was not
taking place, he observed Stocker watching employees
coming to work from the office windows. Stocker testified
credibly to the effect that on occasion he stood and did
observe the handbilling and distribution of literature, that
he occasionally looked out of the window as a "natural
habit," and that he did not make a conscious effort to
observe such handbilling or distribution of union literature.
There is no evidence that Stocker took notes or made any
statements to employees concerning such handbilling or
distribution of union literature.
Considering all of the foregoing, I am persuaded and
conclude and fmd that the facts are insufficient to reveal
that Stocker engaged in surveillance of employee union
activities, or that Stocker created the impression that he
was engaging in the surveillance of employee union
activities. I note that Hansen described Stocker's standing
and observing the handbilling as not being what he
normally did. On the other hand, Collins testified to the
effect that, on occasions unconnected with the handbilling
activities, he observed Stocker observing employees com-
ing to work. Hansen's testimony as to whether such
conduct was normal and that it occurred every day when
handbilling occurred was not persuasive. The descriptive
terminology of what is normal and not normal under the
circumstances is vague and conclusionary. Similarly, the
broad statement that such conduct occurred every time
that handbilling occurred is general in nature. I do not
credit Hansen's testimony to such broad effect." Consider-
ing the fact that handbilling and distribution of literature
occurred at a place clearly in front of the office, where
outsiders could clearly see in and insiders clearly see out, it
amend the complaint should be granted and the heanng reopened so that
there be full litigation of such issue is denied since the General Counsel's
motion to amend the complaint was belated and untimely and has been
denied because the General Counsel had full opportunity to make such
amendment at time ofheanng.
11 No attempt was made to present the evidence on this issue in a
manner designed to present specific occasions and as to specific dates
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not appear reasonable that anyone would believe that
someone in the office would not on occasion look out and
see such handbilling and distribution of literature. Under
such circumstances, the facts in this case do not reveal that
Stocker engaged in surveillance of employee union activi-
ties, and the facts do not reveal that Stocker created the
impression of surveillance of employee union activities.
Accordingly, it will be recommended that Objection 4 be
overruled.12
G. Alleged Supervisor as Observer (Objections Issue
Only)
The Petitioner alleged in Objection 5 that "On the date
of the election, the employer interfered with employee free
choice by designating a supervisor as its election observer."
It is undisputed that Barry Hufsey occupied a position
described as a group head, that Barry Hufsey served as a
company observer for the representation election held on
December 3, 1975, that some other "group heads" voted in
said election without challenge, and that some other
"group heads' " right to vote was challenged and that they
voted challenged ballots.
There is no evidence to reveal whether prior to the
election the parties were aware of the individuals who were
to serve as observers for the respective parties. Nor is there
any evidence to reveal that the Petitioner challenged the
use of Hufsey as an observer excepting as might be
indicated by the challenge to his vote on the basis of his
alleged supervisory status.
The only facts of any significance for consideration of
whether Hufsey is a supervisor or not concern (1) whether
he responsibly directs work and makes assignments of a
nonroutine manner which requires therein an exercise of
independent judgment, and (2) whether he reprimands
employees.
The facts are clear that Hufsey is known as a group head,
that his group consists of four other employees, that he
makes $3.56 per hour, that he makes 30 cents per hour
more than the next highest paid employee in his group, that
he makes 45 cents per hour more than the lowest paid
employee in his group. The facts are clear that, except for
the questions to be discussed herein, Hufsey has none of
the responsibilities or duties of a supervisor, and his terms
and conditions of employment are similar to the terms and
conditions of employment of other employees in his group.
As to his duties, Hufsey was told, when he assumed such
duties or thereafter, that he was to hand out orders, make
sure there was stock to pick and that the stock was in the
correct bins, and, when there weren't any problems, that he
had better be picking.
Assignment of Work
There is no issue that Hufsey assigns work. The issue is
whether such assignment of work is routine or nonroutine
in nature and whether such judgment as used is essentially
independent in nature.
Hufsey gets orders to be filled from the front office and
assigns such orders to the "pickers" for picking. The facts
reveal that the orders are essentially similar in nature, that
the orders to be picked are listed on sheets which include a
number of orders to be picked. Although the orders to be
picked are essentially similar in nature , some of the orders
to be picked concern guns and related type of items. As to
some of the other orders to be picked, some items, such as
boots, are heavier than other items.
Hufsey testified to the effect that he took the order sheets
from the front office, that the order sheets have 26 lines on
a sheet, that each line represents an order, that he counts
such lines and orders and divides the work so that each
picker has about 200 orders to do for half a day's work,
that in doing so each picker gets about 8 or 9 sheets
containing the various orders. The facts are clear that
orders relating to the "gun cage" were given to the
employee assigned to the "gun cage," and that an employee
assigned to the "gun cage" was given the use of a cart and
that such employee received orders like "snow boots"
because they were heavier. It appears that the employee
assigned to the "gun cage" was male and that some of the
other pickers were female . Orders, excepting relating to the
gun cage and snow boots, were divided and given out on a
"first come" basis.
Considering all of the foregoing and all of the facts, the
facts reveal that Hufsey's duties and responsibilities in the
assignment of work was routine in nature and involved the
use of judgment in a minimal sense and not of an
independent nature.
As to the work otherwise, Hufsey trained new employees,
answered routine questions, checked on supplies and stock,
personally helped employees as to lifting stock, etc., told
employees about errors reported to him, and expressed his
opinion in answer to employee questions as to how they are
doing.
The sum of the facts reveals that Hufsey's direction of
work is routine in nature and does not reveal the exercise of
independent judgment. Nor do the facts reveal that Hufsey
has the power to reprimand employees. Rather, the facts
reveal that any disciplinary power or reprimanding power
resides in Hufsey's supervisor, Batista.
Considering all of the foregoing and all of the facts, the
preponderance of the facts fails to establish that Hufsey is
a supervisor within the meaning of the Act. Accordingly, it
will be recommended that Objection 5 be overruled.
H. Threat of Reprisals (Objections Issue Only)
The Petitioner's Objection 7 alleged that "During the
critical period, the employer by its officers, supervisors and
other agents, threatened employees with reprisals if they
joined, supported or assisted the petitioner."
I find no credible evidence to support this objection. The
Petitioner's brief only alludes to evidence relating to
Broussard's statements to employees on November 19, 20,
and 28 and December 1, 1975, as bearing on this issue.
Such evidence alluded to relating to negotiations, that
negotiations would take a long time, that employees would
receive the same benefits because they compared with an
existing unionized plant, and that employees would thus
12 G C Murphy Company, 216 NLRB 785 (1975).
MONTGOMERY WARD & CO. 761
lose what they paid in dues, does not constitute a threat of
reprisal. Rather, at most, as the charging party suggests, the
evidence might support a "threat of futility." However,
neither the complaint nor the objections set forth an issue
of "threat of futility."
I would note further that the General Counsel's brief
alludes to various statements in testimony as to what Spear,
at some point of time between November 20 and 28, 1975,
said to employees in a meeting. Such evidence, however,
did not touch on the issues raised by the General Counsel's
pleadings. The only evidence alluded to which appeared to
touch any issue concerned an issue in the objections and
was the testimony of Shirley Collins. At one point Collins
testified, after refreshment by her affidavit, that Spear
stated that if they voted for the Union, they would be on
their own, and if they voted no, they would have Fred
Spear in their corner. Direct and cross-examination of
Collins revealed that her testimony on this point was
unreliable. I do not credit her testimony on this point.
In sum, I find no evidence to support Petitioner's
Objection 7. Accordingly, it will be recommended that
such objection be overruled.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
The Charging Party requests an order requiring the
Respondent to post, at each of its facilities within a 75-mile
radius of the city of Chicago, a notice stating that it will not
solicit employee grievances or promise to act upon them as
a device for defeating union representation. The Charging
Party argues that the Company's past record warrants an
inference that repeated violations of the same type will
occur at other facilities when there are union organization-
al drives. It is true that, in the cases cited by the Charging
Party, the Board has found the Respondent guilty of unfair
labor practices. Thus, in Montgomery Ward & Co,
Incorporated, 225 NLRB 112 (1976), the Board found the
Respondent to have engaged in unfair labor practices at
Posen, Illinois. Such unfair labor practices were similar to
the ones involved herein and occurred in mid-1975. It is
clear in this case that the Respondent has modified its
conduct to some extent as to the usage of group meetings
and solicitation of grievances. The Board also in a case
reported at 222 NLRB 965 (1976) found the Respondent to
have committed unfair labor practices at Uniontown,
Pennsylvania. Such conduct was not similar to the conduct
herein excepting as to unlawful interrogation. The events in
the Uniontown, Pennsylvania, case occurred in early 1975.
The Board also found, in a case reported in 187 NLRB 956
(1971), the Respondent to have committed unfair labor
practices in Longview, Texas. Such unfair labor practices
occurred in 1968 and 1969. The unfair labor practices
involved herein are not so flagrant as to normally compel
the issuance of a broad order. In my opinion, the type of
remedy under such circumstances is discretionary. Under
such circumstances , since Respondent shows some recogni-
tion of Board law in its unsuccessful attempt to modify its
approach, Respondent very well may learn the lesson and
comply fully with the remedy involved herein and conduct
itself otherwise in a lawful manner. Accordingly, I shall not
issue a broad order as requested in this case.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Montgomery Ward & Co., Incorporated, the Re-
spondent, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Warehouse, Mail Order, Office, Technical and
Professional Employees Union, Local No. 743, affiliated
with the International Brotherhood of Teamsters, Chauff-
eurs , Warehousemen and Helpers of America, is, and has
been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining , and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent engaged in unfair labor practices
proscribed by Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. As alleged in Objection 1, during the critical period
(July 11, 1975, to December 3, 1975) the Employer, by its
officers, supervisors, and other agents, made promises of
benefits to employees to dissuade them from supporting or
assisting the petitioner.
6. The facts do not establish, as alleged in Objection 2,
that- during the critical period (July 11, 1975, to
December 3, 1975), the Employer, by its officers, supervi-
sors, and other agents , granted benefits to employees in
order to dissuade them from supporting or assisting the
petitioner.
7. As alleged in Objection 3, during the critical period
(July 11, 1975, to December 3, 1975), the Employer, by its
officers, supervisors, and agents, coercively interrogated
employees concerning their union wishes and desires.
8. The facts do not establish, as alleged in Objection 4,
that during the critical period (July 11, 1975 to December
3, 1975), the Employer, by its officers, supervisors, and
agents, engaged in surveillance of union activities and/or
created the impression that union activities were being kept
under surveillance by the Employer.
9. The facts do not establish, as alleged in Objection 5,
that on the date of the election (December 3, 1975), the
Employer interfered with employee free choice by desig-
nating a supervisor as its election observer.
10. The facts do not establish that during the critical
period (July 11, 1975 to December 3, 1975), the Employer,
by its officers, supervisors, and other agents, threatened
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees with reprisals if they joined, supported, or
assisted the petitioner.
11. The facts establish , as set forth in Objections 1 and
3 (referred to in Conclusions of Law 5 and 7), that the
Employer engaged in conduct which interfered with
employees' exercising a free and untrammeled choice in the
representation election held in Case 13-RC-13757 on
December 3, 1975.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) and
Section 9 of the Act, I hereby issue the following
recommended:
ORDER 13
The Respondent, Montgomery Ward & Co., Incorporat-
ed, Chicago, Illinois , its officers , agents , successors, and
assigns , shall:
1. Cease and desist from:
(a) Soliciting employee grievances or complaints and in
connection therewith promising employees to act favorably
upon such grievances or complaints if the employees
refrain from supporting or engaging in activities on behalf
of the Union.
(b) In any like manner interfering with , restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act except to the extent that such
rights may be affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
14 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Post at Respondent 's warehouse facility at Bensen-
ville, Illinois, copies of the attached notice marked
"Appendix." 14 Copies of said notice, on forms provided by
the Regional Director for Region 13, after being duly
signed by Respondent's representatives , shall be posted by
it immediately upon receipt thereof, and be maintained by
Respondent for 60 consecutive days thereafter , in conspi-
cuous places , including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of unlawful
conduct not specifically found to be violative herein be
dismissed.
IT IS FURTHER ORDERED in Case 13-RC-13757 that
Petitioner's Objections 1 and 3 to the election held on
December 3, 1975, be sustained, that Petitioner's Objec-
tions 2, 4, 5, and 7 to said election be overruled, that said
election be set aside, and that said case be remanded to the
Regional Director for Region 13 for the purpose of
conducting a new election in the appropriate bargaining
unit involved at such time that he deems appropriate.15
[Direction of Second Election and Excelsior footnote
omitted from publication.]
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
is The appropriate collective-bargaining unit is as follows: All warehouse
employees including packing employees , order pickers , markers, stock
employees , shipping clerks, receiving clerks , invoice record clerks, merchan-
dise clerks , inforex operators and timekeepers employed by the Employer at
its facility now located at 1010 Foster Avenue Bensenville , Illinois, but
excluding office clerical employees , guards , and supervisors as defined in the
Act.